Important Ruling On Perennially-Problematic Creative Commons Non-Commercial License

from the NC-stands-for-'not-clear' dept

Wed, Mar 8th 2017 1:04pm — Glyn Moody

Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):

At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost states a claim for violation of GM's copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx's copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.

That's a sensible result: FedEx was simply an intermediary making copies on behalf of a non-profit organization, even if FedEx extracted normal profits in the course of doing so. But it's also important, because if the judge had found against FedEx, the wider consequences for the CC-NC license would have been disastrous. A few were spelled out in the August 2016 letter from Creative Commons Corporation's lawyers (pdf) seeking permission to file an amicus brief:

a CC BY-NC-SA 4.0 license would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use. And the results would be absurd. Under the plaintiff's interpretation, school districts could not engage a parcel service to send copies of the licensed works to schools; could not use an internet service provider to host the works online for use in the classroom; or, more unworkable still, could not even email a digital file through a commercial network for receipt by students and educators

Although everything turned out fine in this case, it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license. Moreover, we are quite likely to see yet more court cases as a result of the lack of clarity around the definition of non-commercial use. It's hard not to feel that this particular Creative Commons license is more trouble than it's worth.

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Filed Under: copy shop, copying, non-commercial
Companies: creative commons, fedex, great minds

36 Comments

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Anonymous Coward, 8 Mar 2017 @ 1:28pm

Does the license matter?

it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license.

Doesn't the DMCA protect intermediaries regardless of the license? And if not, the intermediaries were operating on behalf of school districts in this case, so fair use could have been considered.

(Why did Great Minds use a CC license anyway if they wanted to sue people copying for students?)
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Anonymous Coward, 8 Mar 2017 @ 1:51pm

It shows, however, that charging even a nominal fee above nornal copying would have gotten FedEx into trouble.
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madasahatter (profile), 8 Mar 2017 @ 2:09pm

Re:
FedEx and most businesses have a standard charge for one-off copies that is the published price. If the schools do enough business with FedEx, they probably have a discounted rate based on monthly copy volume. The only issue in the case was whether a third party who was engaged by to do some work for the end user is liable for copyright infringement just by doing the work. While the case was about a specific CC license it does have broader implications that third parties are not generally liable for infringement just because they were used.
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Anonymous Coward, 8 Mar 2017 @ 5:54pm

A lot of people - myself included - like to be open and share things we've created for free. But we also find the thought of someone taking our work and selling it to be abhorrent.

What's the alternative? Release totally for free and let others sell your work and make money? Or to completely lock it up and forbid usage/sharing altogether? Neither are ideal.

This is why the Non-Commercial clause of CC is important and valuable. It gives us a way to share our work, but prevent others from selling it. It's just a shame that dick-minded companies like Great Minds try to corrupt the license for their own selfish means.
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Thad, 8 Mar 2017 @ 8:26pm

Re:
I've released work under CCNC too. (So has Cory Doctorow, if we want to attach a big name to it.) I know it's got a lot of critics since it's a CC license that's not actually a free culture license.

But I think the criticism here is mainly that it doesn't clearly define what "commercial" and "noncommercial" actually mean. And, under the circumstances, they've clearly got a point, because here we have a publisher using the license, interpreting those definitions differently than intended, and suing.

I'm hoping that this court ruling serves as clarification and makes the license clearer and stronger so that nothing like this happens again.
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Anonymous Coward, 8 Mar 2017 @ 9:03pm

Re:
I don't know what you think you're arguing against.
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Anonymous Coward, 8 Mar 2017 @ 11:26pm

Re:

But we also find the thought of someone taking our work and selling it to be abhorrent.

Isn't that what FedEx is doing? If you publish a book under the Creative Commons Non-Commercial License, would you mind if I sell copies of it to anyone who promises not to use it for "commercial" purposes?
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Anonymous Coward, 8 Mar 2017 @ 11:48pm

Re:
The real question is not what license to use to prevent rip-off merchants stealing your work, but rather how much it will cost you to stop them. The BY license gives almost the same protection, by requiring attribution, which they do not usually give.
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Angus, 9 Mar 2017 @ 5:58am

Time for another clause in the license.
A lawsuit that isn't dismissed outright means there needs to be more words in that license. Clarity through verbosity?
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kallethen, 9 Mar 2017 @ 6:53am

Re: Re:
But that's not what FedEx was doing. FedEx did not go to the schools and say, "Hey, would you like to purchase copies of XYZ book?"

What happened is that a school district went to FedEx and asked to make copies of the book they had and paid FedEx for the time/supplies/labor. Essentially, they used FedEx as if it were a photocopying machine.
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SirWired (profile), 9 Mar 2017 @ 6:53am

No, that's not what they are doing
A content-neutral intermediary like FedEx isn't "selling copies [of the work]", they are just running off print jobs for a client. They aren't liable for the same reason we don't charge the UPS guy if he delivers a package that happens to have drugs in it.

If FedEx were to advertise: "We will provide copies of 'X' for 'non-commercial use'" you might have a point. But they don't.
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Thad, 9 Mar 2017 @ 8:50am

Re: Re:

Isn't that what FedEx is doing?

No.

If you publish a book under the Creative Commons Non-Commercial License, would you mind if I sell copies of it to anyone who promises not to use it for "commercial" purposes?

If your business is to print copies of things for people, and you charge the same amount per page to print a copy of my book as you charge to print anything else, then no, I would not mind that.
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Thad, 9 Mar 2017 @ 8:59am

Re: Re:

The BY license gives almost the same protection, by requiring attribution, which they do not usually give.

That's an odd claim to make. I can envision any number of situations where someone could take a BY license, provide the appropriate credit, and sell the work for profit without compensating the creator. (Which is fine, if the creator chooses the BY license, just as if he chose the MIT license for software, or any other license that requires attribution but not compensation.) You could stick a BY-licensed short story in an anthology and charge for it, you could put a BY-licensed video up on YouTube and stick an ad in front of it, etc.

(As an extreme example, going back to Doctorow again, he's published under NC licenses because he doesn't want a movie studio to be able to do an adaptation of one of his books, slap a "based on the novel by Cory Doctorow" credit on it, and cut him out of the loop on both profits and creative input. But as most people who publish under CC licenses are not bestselling authors, this is not an issue for most people.)
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Anonymous Coward, 9 Mar 2017 @ 11:53am

Re: Re: Re:

But that's not what FedEx was doing.

That lyin' Glen Moody. I believed it just because he wrote it in the above story.

What happened is that a school district went to FedEx and asked to make copies of the book

I believe that's what's called "publishing on demand".

Essentially, they used FedEx as if it were a photocopying machine.

Oh I see. Copyright doesn't apply to photocopies. Good to know. I'm starting to see publishing opportunities that I would have previously thought were prohibited.
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Anonymous Coward, 9 Mar 2017 @ 11:59am

Re: No, that's not what they are doing

A content-neutral intermediary like FedEx isn't "selling copies [of the work]", they are just running off print jobs for a client.

From the story above I thought they were selling the copies. Glen wrote "FedEx extracted normal profits in the course of doing so." I should have known he was lying.

If FedEx were to advertise.

What difference would that make? You don't believe in the first amendment?
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Anonymous Coward, 9 Mar 2017 @ 12:07pm

Re: Re: Re:
"If your business is to print copies of things for people, and you charge the same amount per page to print a copy of my book as you charge to print anything else, then no, I would not mind that."

Maybe I should start a business selling copies of books, priced by their length. Except, I think most copyright holders actually *would* object, even if you say you wouldn't.
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Anonymous Coward, 9 Mar 2017 @ 12:23pm

Re: Re: Re:

No.

From the judge's ruling:

... FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost...

But perhaps you know more about the case than the judge in the case.
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Gwiz (profile), 9 Mar 2017 @ 2:13pm

Re: Re: No, that's not what they are doing

If FedEx were to advertise.

What difference would that make? You don't believe in the first amendment?

The Supreme Court says that commercial speech that concerns unlawful activity is not protected by the First Amendment.

See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n
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Gwiz (profile), 9 Mar 2017 @ 2:26pm

Re: Re: Re: No, that's not what they are doing
As an aside, this is leading to interesting law discussions concerning marijuana dispensaries, which are legal at the state levels, but not at the Federal level. Are they allowed to advertise their wares? Is their commercial speech protected by the First Amendment or not?
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Thad, 9 Mar 2017 @ 3:21pm

Re: Re: Re: Re:
Most copyright holders don't publish their work under a CC-NC license, Anon.

I think you understand the issue here perfectly well, and are not actually as stupid as you are pretending to be.
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Thad, 9 Mar 2017 @ 3:23pm

Re: Re: Re: Re:
FedEx charged for making copies.

They did not charge for the content of those copies.

I don't understand what you're having trouble understanding here.
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Thad, 9 Mar 2017 @ 3:25pm

Re: Re: Re: Re:

Copyright doesn't apply to photocopies. Good to know.

No, it doesn't, if the work is explicitly published under a license that allows photocopying.
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Thad, 9 Mar 2017 @ 3:27pm

Re: Re: Re: Re:
Adding:

Seeing as the judge ruled that FedEx didn't violate the license, and you're disagreeing with him, I don't see how I'm the guy claiming to know more about the case than the judge, dingus.
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Anonymous Coward, 10 Mar 2017 @ 6:42am

Re: No, that's not what they are doing

They aren't liable for the same reason we don't charge the UPS guy if he delivers a package that happens to have drugs in it.

We do if the UPS guy is aware of it.
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Anonymous Coward, 10 Mar 2017 @ 6:45am

Re: Re: Re: No, that's not what they are doing

The Supreme Court says that commercial speech that concerns unlawful activity is not protected by the First Amendment.

So you agree that FedEx was engaging in unlawful activity. Otherwise, advertising it would be protected by the first amendment.
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Anonymous Coward, 10 Mar 2017 @ 6:50am

Re: Re: Re: Re: Re:

Most copyright holders don't publish their work under a CC-NC license, Anon.

This story is all about a case involving the CC-NC license.

I think you understand the issue here perfectly well, and are not actually as stupid as you are pretending to be.

Well, at least some people bother to, you know, actually read the article before commenting on it.
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Anonymous Coward, 10 Mar 2017 @ 7:01am

Re: Re: Re: Re: Re:

FedEx charged for making copies.

First you deny that FedEx made the copies for profit. Now you admit that they did. Make up your mind, it shouldn't be that difficult.

They did not charge for the content of those copies.

What a joke. Copyright law does not make the distinction that you seem to think it does. Or maybe you're trying to claim that all those pages were actually blank?

I don't understand what you're having trouble understanding here.

Idiots are often hard to understand. Please excuse my difficulty.
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Anonymous Coward, 10 Mar 2017 @ 7:14am

Re: Re: Re: Re: Re:
1. If copyright doesn't apply to photocopying then no license is needed.
2. The Creative Commons Non-Commercial License doesn't exempt photocopying.
Thats' two idiot marks for you there. Want to try for three?
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Gwiz (profile), 10 Mar 2017 @ 8:23am

Re: Re: Re: Re: No, that's not what they are doing

So you agree that FedEx was engaging in unlawful activity.

I didn't say that.

To be honest, I'm not really sure and I work in industry where this comes up (sign business). I basically assume that my customer has the rights or permission to use the designs they provide me and I try to make sure I use public domain/properly licensed stuff for designs I create.

What I don't do is spend my valuable time being a "copyright cop" for other peoples intellectual property, because it's not my job to do so.
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Anonymous Coward, 10 Mar 2017 @ 8:59am

Re: Re: Re: Re: Re: Re:

If copyright doesn't apply to photocopying then no license is needed.

What are you talking about?

Thats' two idiot marks for you there.

No, seriously, what are you talking about?
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Thad, 10 Mar 2017 @ 9:01am

Re: Re: Re: Re: Re: Re:

This story is all about a case involving the CC-NC license.

Yes, exactly, which is why a reference to "most copyright holders" is irrelevant. We're not talking about most copyright holders. We're talking about copyright holders who publish their work under the CC-NC license.

Well, at least some people bother to, you know, actually read the article before commenting on it.

And some people don't even bother reading the comments they're replying to.
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Thad, 10 Mar 2017 @ 9:06am

Re: Re: Re: Re: Re: Re:

First you deny that FedEx made the copies for profit.

No I didn't.

First anon said this:

But we also find the thought of someone taking our work and selling it to be abhorrent.

You(?) said this:

Isn't that what FedEx is doing?

I said, "No."

I never denied that FedEx was making copies for profit. I denied that FedEx was "taking our work and selling it".

FedEx was selling a service (making copies), not a good (a book). Why is that so difficult for you to wrap your head around?

What a joke. Copyright law does not make the distinction that you seem to think it does.

No, but the Creative Commons Noncommercial license does.

I don't understand what you're having trouble understanding here.

Idiots are often hard to understand.

...that response is amazing and I'm just going to bask in it for a minute here.
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Anonymous Coward, 16 Mar 2017 @ 6:13am

Re: Re: Re: Re: Re: No, that's not what they are doing
Then what would be the unlawful activity you were referring to with "the Supreme Court says that commercial speech that concerns unlawful activity is not protected by the First Amendment"?
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Anonymous Coward, 16 Mar 2017 @ 6:17am

Re: Re: Re: Re: Re: Re:
Maybe he should have said "most CC-NC licensing copyright holders". Sounds a little redundant though, considering that this whole story concerns the CC-NC license.
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Anonymous Coward, 16 Mar 2017 @ 6:39am

Re: Re: Re: Re: Re: Re: Re:

FedEx was selling a service (making copies), not a good (a book).

What difference does it make if it was a "book", a pamplet, a volume, or a poster? (By the way, the copyright holder and court both referred to "printed book", but I suppose they didn't a copy of Thaddy's special dictionary in which to look up the Thaddy definition of "book".)

No, but the Creative Commons Noncommercial license does.

No one was claiming otherwise. Nice straw man. You might want to keep it away from hot lights.
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Gwiz (profile), 19 Mar 2017 @ 8:36am

Re: Re: Re: Re: Re: Re: No, that's not what they are doing
Like I said, I'm not really sure. This is a bit of a gray area.

Fedex advertising "Copy your textbooks here" in a college town would be a different situation then them advertising "We make copies".

The VCR was marketed towards making copies of broadcast TV even before it was resolved that time-shifting was Fair Use. Even though VCR's enable copyright infringement they are remain legal to sell because they are "capable of substantial noninfringing uses". How is a Xerox machine, even one that is being used to sell copying services to others, any different if the end-user is making the choices of what to copy?
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